Steven Nowling v. State of Indiana
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FILED
FOR PUBLICATION
Jan 31 2012, 9:16 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
MATTHEW J. MCGOVERN
Evansville, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEVEN NOWLING,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 31A01-1010-CR-552
APPEAL FROM THE HARRISON SUPERIOR COURT
The Honorable Roger D. Davis, Judge
Cause No. 31D01-1004-FC-277
January 31, 2012
OPINION ON REHEARING - FOR PUBLICATION
BROWN, Judge
Steven Nowling has petitioned for rehearing of our opinion in Nowling v. State,
955 N.E.2d 854 (Ind. Ct. App. 2011), in which we affirmed Nowling’s conviction for
possession of methamphetamine as a class D felony. In his petition, Nowling asks us to
revisit our reliance upon the testimony of William Bowles, which we noted was admitted
“without objection” and which indicated that the pen hull seized by officers tested
positive for methamphetamine, “because Nowling interjected a continuing objection to
the evidence illegally seized from his home.” Petition at 4; see Nowling, 955 N.E.2d at
863. We grant Nowling’s petition for the limited purpose of clarifying our analysis and
affirm our original opinion.
At trial, during the testimony of Nowling’s probation officer, Jeff Skaggs,
Nowling renewed his motion to suppress the evidence seized pursuant to the Fourth
Amendment and Article 1, Section 11 of the Indiana Constitution, and when the court
overruled his motion, he asked “permission for continuing objection,” which was granted.
Transcript at 139. Nowling also requested a continuing objection to the admission of his
statements to the officers based upon the Fifth Amendment and Miranda, which the court
granted. Also, during the testimony of Officer Katrina Smith, Nowling stated that he
wanted “to make sure my continuing objection, both upon the motion to suppress
evidence and the statement. I’d like to make sure that they’re still continuing through this
witness,” to which the court replied “[s]ure,” and subsequently: “This one and all others.”
Id. at 151.
As indicated in our original opinion, the State recalled Probation Officer Jeff
Skaggs, without objection from Nowling, and Skaggs testified “that Nowling admitted at
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his probation revocation hearing that he possessed the paraphernalia seized on February
26, 2010,” which was the pen hull. Nowling, 955 N.E.2d at 863. We noted that the State
also called William Bowles, a forensic scientist with the Indiana State Police Laboratory,
to the stand. Id. During Bowles’s testimony, the State moved to enter into evidence
State’s Exhibit 4, which was a certificate of analysis regarding the results of lab testing of
the pen hull and was signed by Bowles, to which Nowling explicitly stated: “No
objection. Thank you.” Transcript at 213. The record thereafter indicates: “STATE’S
EXHIBIT 4 ADMITTED WITHOUT OBJECTION.” Id. The State also moved to
publish Exhibit 4, to which Nowling stated: “No objection.” Id. at 214. The record
thereafter indicates: “STATE’S EXHIBIT 4 PUBLISHED TO JURY.” Id. Bowles
testified, relying on the results recited in Exhibit 4, that the pen hull “contained
methamphetamine and cocaine.” Id.
This court has previously held that a party may waive its objection to certain
evidence based upon a continuing objection when it subsequently indicates that it has no
objection to a particular piece of evidence. Hayworth v. State, 904 N.E.2d 684, 693-694
(Ind. Ct. App. 2009). In Hayworth, we noted that “after lodging a continuing objection to
the methamphetamine shopping list,” and after the defendant “repeated her continuing
objection to Exhibits 6 and 7,” she “inexplicably” stated “No objection” regarding
Exhibits 8-12 and 16-23. Id. at 693. We held that “[b]y stating ‘No objection,’ we find
that Hayworth has waived her objection to that evidence,” noting that “[t]he proper
procedure . . . would have been for Hayworth to have remained silent when the State
introduced those various exhibits.”
Id. at 693-694.
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We noted that the defendant’s
affirmative statements of “No objection” were “confusing to the trial court” and that we
would not read the “simple and powerful two-word phrase” as having meant “no
objection other than the continuing objection.” Id. at 694. Accordingly, we conclude
that, if Nowling’s continuing objection applied to Bowles’s testimony regarding Exhibit
4, Nowling waived his ability to challenge the admission of Exhibit 4 on appeal by
stating that he had no objection.
Based on the foregoing, we grant Nowling’s petition for rehearing for the limited
purpose of clarifying our analysis and affirm our original opinion.
FRIEDLANDER, J., and BAILEY, J., concur.
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